DAN MORALES 

,Al-r,,RSEY CESERAL 

Gffice of tty glttornep Qkneral 

&date of ?F;exae 

March 13,1992 

Honorable Chet Brooks 

Chairman 

Committee on Health and 

Human Services 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. DM-97 

Re: Whether Texas’ procedure whereby 

a man voluntarily can establish paternity 

of a child born out of wedlock “legitimates” the child (RQ-178) 

Dear Senator Brooks: 

Prior to its amendment in 1986, section 309(a) of the United States 

Immigration and Nationality Act of 1952 provided that a child born outside of 

wedlock outside of the United States to a father who is a citizen of the United States 

and a noncitizen mother was deemed a citizen of the United States from birth if, 

before the child reached age twenty-one, the child’s paternity was established “by 

legitimation,” according to the law of the child’s or the father’s residence or 

domicile.’ We understand you to ask whether a child whose paternity is established 

tScction 209(a) of the Immigration and Nationality Act appears at section 1409(a) of title 8 of 

the United States Code. In 1986, Congress amended section 309(a) so that a child bon outside of 

wedlock is deemed a citizeo of the United States from the time of bii if, before tbe child reaches the 

age of eighteel& 

a blood relationship benveen the child and the [child’s] father is established by 

clear and convincing tidence, provided the father bad the nationality of the 

United States at the time of the child’s bbtb, the father mdess deaascd has 

agreed in writing to provide tkaocial support for the child until such child 

reaches the age of eighteen years and if, while such child is under the age of 

eighteen years, (1) such child is le&imated under tbe law of the child’s 

residence or domicile, or (2) the father acknowledges paternity of the child in 

writing under oath, or (3) paternity of the child is c&abkhed by adjudication 

of a competent court. 

Immigration & Nationality Act Amends. of 1986, Pub. L 99653, 5 13(b), 100 Stat. 3657 (1986). We 

arc informed that a child born before the effective date of the 19% amendments must become a citizen 

pursuant to the pre-1986 version of section 309(a) because that section deems tbe child a citizen from 

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Honorable Chet Brooks - Page 2 (DM-97) 

under Texas law pursuant to sections 13.21 through 13.24 of the Family Code, as 

amended in 1989, is deemed a United States citizen pursuant to the pre-1986 

version of section 309(a) of the Immigration and Nationality Act. While this office 

cannot determine the citizenship of an individual under federal law, we can explain 

the purpose as well as the effect, if any, of the 1989 amendments to sections 13.21 

through 13.24 of the Family Code on the status and rights of a child under Texas 

law. 

Until 1989, Texas law provided a procedure for “voluntary legitimation” in 

sections 13.21 through 13.24 of the Family Code. Using Texas’ statutory procedure 

for “voluntary legitimation,” a man who was a citizen of the United States and a 

resident of Texas, could, by voluntarily executing a proper statement of paternity 

and having a court designate him to be the father, legitimate his child born out of 

wedlock outside of the United States to an alien woman. After legitimation under 

the pre-1989 version of sections 13.21 through 13.24 of the Family Code, the child 

was entitled to the same rights under Texas law as a child born in wedlock. See 

Fam. Code 9s 11.01(3) (defining “[plarent” to include man who has been 

adjudicated to be child’s biological father), 11.01(4) (defining “[plarent-child relationship”), 12.04 (listing rights, privileges, duties, and powers existing between 

parent and child). In 1989, however, Texas amended sections 13.21 through 13.24 of 

the Family Code to provide a procedure for “voluntary paternity,“’ instead of 

“voluntary legitimation.” By changing the name of the procedure, the Texas statute 

(footnote continued) 

birth if the terms of the statute are satisfied. Thus, the issue you rake will be pertinent until the year 

5007, when children born in 1986 will turn twenty-one years of age. 

‘Section 13.21 establishes a procedure for voluntary adjudication of paternity in cases in which 

a man claiming to IX the biological farher of a child who has no presumed farher has executed a 

statement of paternity. A voluntary paternity suit is “voluntary” only in the sense that the alleged father 

voluntarily wires and signs a statement of paternity. Smith, Title 2: Comrnenruty, 8 TEX. TECH. L. 

REV. 19, 68 (1976) (Texas Family Code Symposium Supplement). The statement of paternity, which 

must be attached to the petition for adjudication of paternity, must comply with the requirements 

articulated in .section 13.22 of the Family Code. But see Fam. Code 0 13.24 (validating a statement 

acknowledging paternity or an obligation lo support a child if the alleged biological father signed the 

statement prior to January 1, 1974, although the statement does not comply with section 13.22 of the 

Family Code, and is not filed with the Texas Department of Human Services or with the court). A 

statement of paternity executed in compliance with section 13.22 constitutcspriwo facie evidence that 

the child is the child of the man execuGng the statement and that he has an obligation to support the 

child. Id. 5 13.23(a); see also Smith, suprcr at 73. Seegenrrcrlly Doyle, Commem, Volrtrtra~ Legitinwtion 

Rig/m of Unwed Far/ws in Tews. 20 Hovs. L. REV. 1157 (1983). 

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Honorable Chet Brooks - Page 3 (DM-97) 

differs from the pre-1986 version of section 309(a) of the Immigration and 

Nationality Act, which requires “legitimation.” 

The Texas Legislature amended sections 13.21 through 13.24 of the Family 

Code, as well as other sections of the Family Code, Human Resources Code, 

Probate Code, and civil statutes in Senate Bill 401. Acts 1989, 71st leg., ch. 375, 

3 17, at 1481, to remove all references to legitimacy and illegitimacy. Tapes of a 

public hearing conducted regarding Senate Bill 401 reveal that, by removing 

references to legitimacy and illegitimacy throughout Texas law, the legislature 

merely intended to eradicate what it considered an “odious term” that wrongly 

stigmatized the child of an “illicit union.” Hearings on S.B. 401 Before the Senate 

Jurisprudence Comm., 71st Leg. (Mar. 14, 1989) (testimony of Harry Tindell, drafter 

of S.B. 401); see aLr0 id. (testimony of Steven McNally, expert witness, stating that 

word change was nonsubstantive). 

The present voluntary paternity procedure is one method by which a parentchild relationship may be established. Fam. Code 9 12.01(a). According to the 

Family Code, once parenthood has been established by the volu.ntary paternity 

procedure or by any other method listed in section 12.01(a), the parent-child 

relationship “extends equally to every child and parent regardless of the marital 

status of the parents.” Id. 9 12.01(b). Thus, once a court adjudicates the man to be a 

parent of the child, see id. 5 13.21, the man and child have a legal parent-child 

relationship “incident to which the rights, privileges, duties, and powers as provided 

by Section 12.04 of this code are conferred or imposed.“) Id. § 11.01(4). 

3Section 12.04 of the Family Code states: 

Except as otherwise provided by judicial order or by an affidavit of 

relinquishment of parental rights executed under Section 15.03 of thii code, the 

parent of a child has the following rights, privileges, duties, and powers: 

(1) the right to have physical possession, to direct the moral and 

religious training, and to establish the legal domicile of the child: 

(2) the duty of care, control, protection, and reasonable 

diicipliie of the child; 

(3) the duty to support the child, including providing the child 

with clothing, food, shelter, medical care, and education; 

(4) the duty, except when a guardian of the child’s estate has 

been appointed, to manage the estate of the child, including a power 

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Although Senate Bill 401 changed the name of the procedure from “voluntary 

legitimation” to “voluntary paternity,” the bill did not change the procedure involved, 

with the exception of amending section 13.21 to permit governmental entities other 

than the Texas Department of Human Services to file a petition for adjudication of 

paternity. Moreov& both the previous “voluntary legitimation” procedure and the 

current “voluntary paternity” procedure produce the same result: the establishment 

of a parent-child relationship. The legislature did not alter the substance of rights, 

privileges, duties, and powers incident to the parent-child relationship listed in 

sectlon 12.04 in 1989 when it changed the name of the procedure from “voluntary 

legitimation” to “voluntary paternity.” Clearly, then, a child born out of wedlock 

whose paternity has been established pursuant to the voluntary paternity procedure 

set forth in sections 13.21 through 13.24 of the Family Code is entitled to the same 

parent-child relationship, and therefore the same rights under Texas law, as a child 

born in wedlock.” In our opinion, the 1989 amendments to sections 13.21 through 

13.24 made no substantive change, and the change in terminology thus should not 

(footnote continued) 

as an agent of the child to act in relation to the child’s estate if the 

child’s action is required by a state, the United States, or a foreign 

government; 

(5) the right to the services and earnings of the child; 

(6) the power to consent to marriage, to enlistment in the 

armed forces of the United States, and to medical, psychiatric, and 

surgical treatment; 

(7) the power to represent the child in legal action and to make 

other decisions of substantial legal significance concerning the child; 

(8) the power to receive and give receipt for payments for the 

support of the child and to hold or disburse any funds for the benefit 

of the child; 

(9) the right to inherit from and through the child; and 

(10) any other right, privilege, duty, or power existing between a 

parent and child by virtue of law. 

4For interesting cases regarding chapter 13 of the Family Code, see Bore v. Lmw~, 802 S.W.Zd 

73, 75 a.1 (Tex. App.--Austin 1990), wrir grmfed, 34 Tex. Sup. Ct. J. 687 (Nov. 19, 1991); Tercrs Dep’f of 

Hunum Resorrrres I’. Hmnrmrder, 595 S.W.Zd 189 (Tex. Civ. App.--Corpus Christi 1980, writ ret’d n.r.e.) 

(overruled on other grounds in In Inferest o/J&M., 631 S.W.Zd 730 (Tex. 1982)). 

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Honorable Chet Brooks - Page 5 (DM-97) 

affect the way in which the federal government applies the provisions in determining 

citizenship of children born out of wedlock under the Immigration and Nationality 

Act. 

SUMMARY 

The procedure for establishing “voluntary paternity” under 

sections 13.21 through 13.24 of the Family Code is essentially 

the same as the procedure for “voluntary legitimation” under the 

pre-1989 version of sections 13.21 through 13.24, and both 

procedures produce the same result. A child born out of 

wedlock whose paternity has been established pursuant to 

sections 13.21 through 13.24 of the Family Code is entitled to 

the same parent-child relationship and the same rights under 

Texas law as a child born in wedlock. 

Very truly yours, 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Deputy Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Kym Oltrogge 

Assistant Attorney General 

P- 494